On 28 May, the newly elected constituent assembly of Nepal voted by 560 to 4 to proclaim Nepal “a secular, federal, democratic, republic nation”. This included the fulfillment of the long-standing demand by the Maoists to abolish the monarchy, which was astoundingly done with immediate effect. The world’s only Hindu nation’s rather infamous ruler, King Gyanendra, was given 15 days to vacate the Narayanhiti palace. The palace, reports say, is to be turned into a museum, with the national flag replacing that of the Shah dynasty, which ruled the country for centuries.
In transition: A change of guard takes place in front of an empty flagstaff at the Narayanhiti palace in Kathmandu on Thursday. Photograph: Saurabh Das / AP
Elections for Nepal’s constituent assembly were held on 10 April. Under the terms of the country’s interim constitution, this assembly will have two years to draft a new constitution for Nepal.
India’s own Constituent Assembly took three years to frame our constitution. The trials and tribulations of the Indian Constituent Assembly are recorded in twelve volumes of Constituent Assembly debates. On 29 August, 1947, the Constituent Assembly appointed a drafting committee, chaired by B.R. Ambedkar. A revised,and much debated eventual draft of our constitution was adopted on 26 November 1949. These twelve volumes record the rather eloquent debates between the founders of theIndian nation — their positions, in support and against many provisions of the Constitution.
Therefore, concerns of some lawyers regarding the flaws or the lack of process while abolishing the monarchy and establishment of a republic in Nepal are important. There was no discussion or recording of the objections of the pro-monarchist Rashtriya Prajatantra Party (RPP-Nepal). While everyone may agree that the monarchy needed to be abolished, the process adopted by the constituent assembly is important. The behaviour of any constituent assembly has a bearing on the perceived legitimacy of any new constitution.
Everyone wants to know by what Nepal’s constituent assembly will be inspired while debating, drafting and eventually adopting the country’s new constitution.
Ironically, the British, who influenced the legal traditions of most common law countries, especially in the South Asian region, do not have a written constitution. India, which drew substantially from the conventions and precedents of the British system, looked to the written constitutional traditions of the United States, Canada, Australia, even Ireland. For instance, the conception of the Directive Principles of State Policy was inspired by the Irish constitution.
India, and more recently South Africa, present vivid examples of treating civil, political, social, economic and cultural rights as being on par. Traditionally, constitutional texts have been viewed as manifestoes for civil and political rights, and protection of these rights from infringement by the government. But in newer countries in the developing world, constitutions have come to be viewed as legal manifestoes for change or “transformative constitutionalism”, where the text not only protects the citizens from governmental intrusion, but also guarantees them action by the state to address traditional disadvantages. Therefore, the Indian and South Africa constitutions provide for the rights to land reform, employment, and to form trade unions. The South African text in fact goes further in providing for rights to everyone to have access to adequate housing, health care services, sufficient food, water and social security.
Inspired by the rather active Supreme Court of Nepal, which has, even in the middle of a civil war, given remarkable decisions in the context of women’s rights and more recently, on sexual orientation, Nepal’s constituent assembly may choose to look more towards the South Africans’ rather extensive anti-discrimination provision. This provision provides that the state or individuals may not discriminate against anyone on the grounds of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. The interim constitution of Nepal, adopted in 2007, prevents discrimination by the state on grounds of religion, race, caste, tribe, sex, origin, language, ideological conviction.
The interim constitution also provides for extensive protection from gender discrimination — including equal succession rights and reproductive health rights for women. It punishes physical and mental violence against women. The interim constitution also provides very detailed protection to the press from censorship, and rights to environment, health, employment and social security. Further evidence of its progressive antecedents, include the right to privacy and right against preventive detention.
The interim constitution also provides for the rather ambiguous right to social justice, whereby “Women, Dalit, indigenous tribes, Madheshi community, oppressed group, the poor peasant and labourers, who are economically, socially or educationally backward, shall have the right to participate in the state mechanism on the basis of proportional inclusive principles.” Provisions like this will no doubt be made more explicit, leaving no ambiguity.
The interim constitution also had other provisions, including that the Nepali language in Devanagiri script will be the official language, a description of the national flag (with a moon and sun rays), that the cow is the national animal, and that a national anthem is to be determined. Like India, Nepal has a chapter on Directive Principles that will guide state policy. It includes state responsibility to formulate a minimum common programme for socio-economic transformation to eliminate all forms of feudalism.
Eventually, final constitutions reflect much of the form of their interim constitutional selves. Constitutions don’t always address competing claims, especially in contexts where there is a scarcity of resources and opportunities. The riots against immigrants in South Africa, and the organized protests by members of the Gujjar community, here in India demanding legal recognition of their community as a scheduled tribe, are symptoms of the inadequacies of transformative constitutionalism. Well-meaning constitutions need good governance to implement their ideals.
Perhaps in some ways, transformative constitutionalism is also governance by faith. Faith that a legal document, adopted by an elected assembly, for, of and by their people, will change lives for the better, will redistribute resources fairly, and will give voice to those who have not been heard before.
Menaka Guruswamy is an advocate, and practises law at the Supreme Court of India. She has law degrees from the National Law School India, Oxford University and Harvard Law School. Respond to this column at firstname.lastname@example.org